In response to an October 22, 2006 Los Angeles Times article, Is Justice Served, Victoria Pynchon is posting a series of arbitration articles. The first is Does Arbitration Disserve Justice? It is followed by Arbitration v. Litigation. For those who have picked up a whet for arbitration information on this blog, stay tuned to her blog by subscribing to its feed or checking often.
As to outcome, an arbitrator makes the decision and is responsible for the quality of the decision. By contrast, a mediator facilitates parties reaching their own decision and is neutral regarding the outcome. In mediation, parties are responsible for the quality of the decision.
The arbitrator is the enforcer of the process, limits exchange between principals, limits scope of information and communication and assesses facts. A mediator facilitates and encourages exchanges between principals, broadens the scope of information and communication, and helps parties assess facts for themselves.
Finally, an arbitrator is blind with respect to the parties and their backgrounds, has high expertise in rules and high power over the principals. A mediator has high expertise in social process, low power over the principals and may have moderate knowledge of the parties and background.
I cannot imagine arbitrating a case that has not first been mediated. Arbitrators do not replace mediators; they are a substitute for judicial decision-making when mediation has failed.
A blue ribbon faculty led by Lynn P. Burleson of Raleigh, NC and Hanley M. Gurwin, Bloomfield Hills, MI, and assisted by Joan F. Kessler, Milwaukee, WI, Allen R. Koritzinsky, Madison, WI, Barbara K. Runge, Houston, TX and Stephen Schlissel, Mineola, NY, taught their annual arbitration course for the American Academy of Matrimonial Lawyers in Louisville, Kentucky in 2004.
In conjunction with the AAML Annual Meeting in Chicago, there will be an arbitrators’ reunion on Wednesday, November 8, 2006, at 4:00 p.m.
While it is not necessary to have a family law arbitration statute to arbitrate divorce cases, the AAML Board of Govenors approved in 2005 a Model Family Law Arbitration Act. Learning from North Carolina, as we do more divorce arbitration, such tailor-made legislation will be helpful. We are hoping that bi-partisan leaders will embrace the model Family Law Arbitration Act. In these times of budgetary crises, it requires no state funds and as divorce arbitration takes hold, it could lighten the load on our judiciary.
I’ll post more about divorce arbitration soon.
The following Kentucky AAML Fellows were certified as arbitrators:
Mitchell Charney
101 S. Fifth Street, Ste. 3000
Louisville, KY 40202
502-589-4440
502-581-1344 Fax
mcharney@gsatty.com
William L. Hoge III
200 South Seventh Street, Ste. 506
Louisville, KY 40202
502-583-2005
502-583-1233 Fax
hoge@divorceinkentucky.com
Bonnie Brown
401 West Main Street, Ste. 1000
Louisville, KY 40202
502-589-3200
502-589-3219 Fax
bmb@bmbfamilylaw.com
Steven J. Kriegshaber
325 West Main Street
2000 Waterfront Plaza
Louisville, KY 40202
502-587-7711
502-587-7756 Fax
skfamlaw@aol.com
Diana L. Skaggs
Diana L. Skaggs + Associates
623 West Main Street
Louisville, KY 40202
502-562-0050
502-582-3523 Fax
Skaggs@LouisvilleDivorce.com
Wynter Reneaux Collins
200 South Fifth Street, Ste. 600N
Louisville, KY 40202
502-585-5100
502-589-5257 Fax
reneauxCollins@aol.com
Sandra Dawahare
Dawahare & Kershaw LLP
106 West Vine Street,Ste. 304
Lexington, KY 40507
859-381-1145
859-381-1165 Fax
sdawahare@dandk-law.com
Besides the AAML Fellows certified as arbitrators listed above, the following divorce lawyers and mediators also attended this training:
Advantages of divorce law arbitration include:
Ability of participants to decide who will be their judge. Parties can select an arbitrator with particular expertise, such as business valuation, retirement plans, tax, nonmarital tracing issues, mental health, etc.
More privacy.
Quicker trial dates and pre-arbitration conferences, which also may result in less expense and tension.
Swiftness of decision making.
Less formal.
The arbitrator has all the time you need to put on your case.
Disadvantages voiced by some include:
Perception that there cannot be binding child custody decision. (Maybe but not necessarily true; usually are subject to trial de novo if the court concludes the award is contrary to a child’s best interest.)
Beliefs that parties are not protected by rules permitting discovery and required financial disclosure. Under the Uniform Arbitration Act mechanisms for disclosure are provided and in the arbitration agreements parties may have the arbitrator supervise the discovery, or the parties may complete discovery and then arbitrate.
Fears that the arbitrator will be able to ignore the law. While an arbitrator’s mistake of law does not generally provide a basis for refusing to confirm an award, the parties can agree that the arbitrator will be bound by the substantive law of the state.
Inability of the arbitrator to enforce an award. Awards are tendered to the court and after confirming the award, all remedies for enforcement are available in court as with any other judgment.
The parties must pay for the arbitrator’s time.
HOW DIVORCE ARBITRATION WORKS is the first in a series of family law arbitration posts.
An agreement to arbitrate fixes the power of the arbitrator, the degree of trial court and appellate review, compensation of the arbitrator, and the discovery process. The arbitration hearing is generally more informal than a court trial, but the proceedings are recorded and result in a written order tendered by the arbitrator to the trial court judge along with findings of fact and conclusions of law. As with motions to alter, amend or vacate, parties to the arbitration may move for amendment within the time set out in the arbitration agreement.
Arbitration awards may be more difficult to appeal, except for child related matters, than trial court judgments, depending upon the agreement of the parties within the arbitration agreement.
Stay tuned for more.
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